Alex Rodriguez’s Complaint against MLB and the Players’ Union

Yesterday, I provided my take on Arbitrator Fred Horowitz’s decision imposing a 162-game (plus 2014 post-season) against Alex Rodriguez.  Today, I’ll discuss ARod’s complaint against MLB and the MLB Players’ Association to overturn the arbitration decision.  You can find the complaint here.

The only relief sought by ARod’s new complaint is to have the arbitration decision overturned.  However, the complaint does not request a temporary injunction to allow ARod to play while his new litigation winds through the courts.  Presumably, ARod’s many attorneys will file such a request in the near future.

ARod’s complaint essentially argues that Horowitz’s decision did not draw its essence from the MLB/union collective bargaining agreement and Joint Drug Agreement (“JDA”), that the decision and Horowitz’s handling of evidentiary questions were in manifest disregard of the law, and that Arbitrator Horowitz was biased against Rodriguez.

Rodriguez’s alleged evidence of Horowitz’s bias is that Horowitz refused to allow ARod to select his own arbitrator to the arbitration panel, refused to allow ARod to cross-examine baseball Commissioner Bud Selig, refused to allow ARod to fully and completely cross-examine principal witness Anthony Bosch, refused to allow ARod’s expert to examine Bosch’s Blackberry devices although two experts retained by MLB had done so, and refused to stop MLB’s leaking of information damaging and prejudicial to ARod.

The complaint also alleges that the Player’s Union failed to properly represent ARod by failing to take action to stop MLB’s leak of information injurious to ARod and in violation of the parties’ collectively bargained confidentiality rights, by failing to take action to stop MLB’s abusive investigation tactics, including failing to contest MLB’s lawsuit against Biogenesis America and its principle employees, by refusing to allow ARod to select the Union’s representative to the arbitration panel, and by statements made by the former Union head Michael Wiener which indicated that he advised ARod to accept a short suspension and that the evidence he saw suggested ARod’s guilt.

ARod’s complaint does raise a few issues which might gain some traction.  For example, why exactly did Horowitz refuse to allow ARod’s expert to examine Bosch’s Blackberrys when MLB’s experts had the opportunity to do so?  Also, Michael Wiener’s statements on XM radio on August 6, 2013 that he had recommended ARod accept a suspension based on the evidence Wiener had seen were inappropriate and potentially prejudicial to ARod given that the discipline/grievance process had only just started.

[An unanswered question I have personally is what testimony, if any, was presented to the arbitrator regarding whether or not ARod could have taken all the PEDs Bosch testified he took and still manage to pass 12 drug tests during the relevant period (11 before MLB’s suspension notice and a final one two weeks after the suspension notice).  It would have been ARod’s responsibility to present expert testimony to the effect that ARod could not possibly have taken all the PEDs he was accused of taking and still passed all these drug tests.  It’s unknown at present whether ARod presented such expert testimony at the arbitration hearing.  It’s also worth noting that MLB did not begin in-season testing for human growth hormone until 2013.]

The rest of ARod’s complaint doesn’t appear to have much merit.  The arbitration transcripts haven’t been published, so it’s impossible at present to know whether Horowitz’s evidentiary rulings on Bosch’s hearsay testimony (i.e., “Velazquez told me he gave the steroids I furnished to ARod,” “Yuri Sucart told me that ARod said to him that the PEDs were really helping ARod,” etc.) were valid, or to what degree such hearsay testimony was even necessary to the arbitrator’s ultimate findings; whether Bosch provided answers to questions on direct examination that he refused to answer on cross-examination on the basis of 5th Amendment privilege (i.e., the right not to incriminate oneself by testifying about criminal conduct) or whether the questions he refused answer on the basis of 5th Amendment privilege were truly material to the issues before the arbitrator (ARod’s purported PED use) (the complaint suggests that the questions Bosch asserted the privilege on where not directly material to the charges against ARod); or whether Bosch properly authenticated the documents used to find ARod used PEDs.  These questions should be easy for a court to resolve upon review of the arbitration transcripts.

ARod’s claims that MLB engaged in all kinds of improper conduct with respect to its investigation and its leaking of confidential information look weak.  Assuming that ARod’s many attorneys raised at the arbitration hearing all the problems with how MLB obtained its information (the deal to defend and indemnify Bosch, the purchase of stolen documents, other offers of payment for testimony, etc.) and the resulting unreliability of this evidence and the arbitrator still found this evidence convincing, it’s hard to see how MLB’s methods of obtaining the documents/information/testimony could constitute a reason to overturn the arbitrator’s decision.

Similarly, the bluster about MLB’s many leaks of information is subject to an “unclean hands” defense (i.e., what’s good for the goose is good for the gander) in light of ARod’s many, many similar leaks to the press.  Additionally, section 6.A.4 of the JDA specifically creates an exception to the confidentiality rule allowing MLB to “respond to inaccurate or misleading claims by the player that would undermine the integrity and/or credibility of the Program.”  All of the many MLB leaks alleged in ARod’s complaint occurred on or after February 1, 2013, several days after ARod issued a statement denying any connection to Bosch or that the documents published by the Miami New Times purporting to evidence ARod’s use of PEDs were legitimate.

Finally, ARod’s claim that the Players’ Association failed to represent him properly at the arbitration hearing runs smack into the fact that ARod was represented by as many as nine of his own attorneys at the arbitration hearing who actively litigated the matter.  What was the herd of attorneys doing while the Players Union (who had four attorneys of its own at the hearing) was sitting on its hands?

At present, it’s hard to see how ARod’s new lawsuit will have any effect other than to drain his assets through legal fees which some commentators have suggested could be as much as $1 million per month.

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